Commissioners Get It Wrong Again

by Karl Duff

On Aug. 5, Kitsap County’s Shorelines Master Plan (SMP) manager, Susan Donahue, suddenly announced the State Department of Ecology (DOE) had pre-empted the whole SMP update process – and instead intends to impose the 2005 Critical Areas Ordinance (presumably buffers and set-backs) directly into the SMP. 

Her statements, together with an e-mail to the Task Force, declared the whole affair is now “off the table,” in other words not up for debate.  No public explanation for this has been offered.

This is presumably related to DOE’s realization its officials have found no scientific evidence of association between man-made stressors and marine habitat degradation, despite extravagant expenditures.

Of more than 1,000 beach units (drift cells) studied, the department attempted to correlate (on 14 “random” units) “stressors” and “habitat” but found no correlation.  It also turned out that six of the 14 weren’t even random, but were adjacent to each other.

Ecology is indeed in a fix on its lack of science, but its approach to retrofit discredited the science of the 2005 CAO is not a reasonable fix.

This is also a high-risk undertaking for Kitsap to defend it in court.

Do they believe they can get away with it? 

Consider:

• The Kitsap CAO has already been found illegal by the State Court of Appeals,

• A new state law, EHB-1653, intended to nullify the Court of Appeals decision, by melding the CAO (growth management) and SMP (shorelines) regulations for an interim period until the SMP update is approved.  But it has the fatal flaw of declaring itself retroactive, on its face an illegal attempt to counter a court ruling which will likely fail.

• The CAO used the “precautionary principle” to establish large, arbitrary buffers and setbacks beyond what science supports, a practice also ruled illegal by some courts.

• The CAO used the Growth Management Act definition of Best Available Science (BAS), not the legal standard for shorelines.  The shoreline science standard is no net loss of ecological function.  The original Critical Areas BAS was also deeply flawed in establishing saltwater set-backs using only fresh water science.

Certain other facts leap out to reviewers.  In addition to lack of correlation of man-made “stressors” and habitat impact, Bainbridge Island showed 72 percent of smolt-spawning habitat in front of bulkheads, as well as 49 percent of those for candlefish.  Apparently these species don’t care whether there are man-made features on the shoreline.

The data shows no detectable influence of bulkheads, pilings or any other shore-side modifications on marine habitat.

Substituting previous Best Available Science CAO restrictions of GMA as an approach is also almost certain to fail under challenge, since both the courts and the state Legislature clearly state that only the SMA and no-net-loss science apply to shorelines.

This cannot be a surprise to our commissioners. They appear to be in alliance with well-known environmental activist organizations such as Futurewise (an appellant in the KAPO v. Central Puget Sound Growth Management Hearings Board), and foolishly continue to pursue the activist’s agenda in pursuing their odious attack on private property. 

As previously published, Futurewise Director Tim Trahinovich declared on March 23, 2009, that DOE personally requested the group’s help in persuading Kitsap to “get it right” on the SMP and to increase saltwater front setback requirements to 150 feet.

The problem is not really DOE’s.  The SMP update is a Kitsap County document. Kitsap (with an apparently unlimited budget) will pay the costs and take the fall, even though DOE dictates the SMP contents.

Because Kitsap foolishly contracted with DOE to obtain free money to help finance this debacle, DOE now holds the hammer.  We see again free money is never free.

Citizens should demand accountability from their commissioners on this issue.  Cheating on the rules to achieve a political outcome unjustifiably penalizing shoreline owners must not be tolerated                                                

Karl Duff

Please note:  Letter also apears in “The Port Orchard Independent”

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